United States v. Scotty Joe Uder ( 1996 )

____________
No. 95-3513
____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Scotty Joe Uder, *
*
Appellant. *
____________
Submitted: March 15, 1996
Filed: October 18, 1996
____________
Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
____________
McMILLIAN, Circuit Judge.
Scotty Joe Uder appeals from a final judgment entered in the United
States District Court1 for the Western District of Missouri, upon a jury
verdict finding him guilty on one count of conducting operations in a chop
shop, in violation of 18 U.S.C. § 2322(a)(1). The district court sentenced
Uder to twenty-one months imprisonment, three years supervised release, and
special assessment of $50.00. For reversal, Uder argues that the district
court (1) erred in informing the jury that some of the government witnesses
had pled guilty; (2) erred in denying his motion for judgment of acquittal
based upon insufficiency of the evidence; (3) committed plain error in
failing to enter judgment of acquittal based upon a double jeopardy
violation; (4) clearly erred in finding that Uder's role in the offense was
not minor under
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
U.S.S.G. § 3B1.2; (5) abused its discretion by failing to depart downward
based upon an overstated criminal history under U.S.S.G. § 4A1.3; and (6)
abused its discretion by failing to depart downward based upon
extraordinary physical impairment under U.S.S.G. § 5H1.4. For the reasons
discussed below, we affirm.
Background
On October 20, 1994, Uder, along with seven other individuals, was
charged in an eight-count indictment. Uder was charged in two of the
counts, one alleging that he and his co-defendants knowingly operated a
chop shop in violation of 18 U.S.C. § 2322(a)(1),2 (b),3
2
Subsection 2322(a)(1) provides in pertinent part:
(a) In general.--
(1) Unlawful action. Any person who
knowingly owns, operates, maintains, or controls a
chop shop or conducts operations in a chop shop
shall be punished by a fine under this title or by
imprisonment for not more than 15 years, or both.
3
Subsection 2322(b) provides:
(b) Definition. For purposes of
this section, the term "chop shop" means
any building, lot, facility, or other
structure or premise where one or more
persons engage in receiving, concealing,
destroying, disassembling, dismantling,
reassembling, or storing any passenger
motor vehicle or passenger motor vehicle
part which has been unlawfully obtained
in order to alter, counterfeit, deface,
destroy, disguise, falsify, forge,
obliterate, or remove the identity,
including the vehicle identification
number or derivative thereof, of such
vehicle or vehicle part and to
-2-
and the other alleging that he and four of his co-defendants knowingly
tampered with and altered the vehicle identification number on a stolen
car, in violation of 18 U.S.C. § 511. By the time of trial on July 19,
1995, all of Uder's co-defendants had entered into plea or cooperation
agreements with the government, and Uder was the only defendant left to
stand trial.
The government called ten witnesses for its case in chief, including
several of Uder's former co-defendants. According to the government
witnesses, Uder worked at an auto body shop in Fair Grove, Missouri, which
operated under the name Heavy Truck and Car Sales and was owned and
operated by an individual named Lloyd Dale Hightower. In November of 1993,
Hightower was serving time in a federal prison for possession of
methamphetamine with intent to distribute and conspiracy to transport
stolen cars. Nevertheless, Hightower was able to direct illegal operations
and related activities at the shop through an associate, Robert Moon, and
Hightower's wife, Margaret Eaves (formerly Margaret Hightower), who lived
next door to the shop. Hightower would allegedly purchase a salvaged
vehicle at minimal cost, have the car cut up for parts while keeping the
frame, then have the body of a stolen car assembled on the frame of the
salvaged car, and have the vehicle identification number plates from the
salvaged car switched to the stolen car. He would then sell the rebuilt
car at a substantial profit. (This practice is referred to as "body
swinging" or "swinging.") The government's evidence indicated that during
the winter of 1993-1994, as part of Hightower's operation, a salvaged 1993
Suburban was legitimately purchased in Louisiana. The 1993 Suburban was
cut up for parts at Hightower's shop and the frame salvaged. Then, a
stolen 1994 Suburban was rebuilt on the salvaged frame and was retagged to
bear the vehicle identification number and other identifying parts from the
1993 model.
One of the government witnesses, Mike Willis, testified that he
worked at Hightower's shop but did legitimate body work. He
distribute, sell, or dispose of such
vehicle or vehicle part in interstate or
foreign commerce.
-3-
testified that, on January 1, 1994, he was visiting in Eaves' home. Based
upon his observations and what he heard, he became suspicious of the
activities that were taking place next door at the shop. The next day he
left a message with FBI agent Al Stiffler to report that a "swing" of a
Suburban was in progress at Hightower's shop. Willis implicated Hightower,
Eaves, and Moon, and testified that a man referred to as "Robert" was
apparently also involved in the "swing." The following day, Willis saw
Stiffler and a state patrol officer at the shop.
Moon, who had originally been charged in the indictment, testified
under a plea agreement that during 1993 and 1994 he was in the business of
stealing cars for chop shops, including Hightower's. He testified that,
in October or November of 1993 (before Hightower's incarceration), he saw
Hightower obtain the 1993 Suburban and he saw the car chopped up and the
vehicle identification number being saved. The frame and engine were taken
to an auto frame shop owned by Chris Brown, in Lebanon, Missouri, to have
the frame straightened. After Hightower was incarcerated, he allegedly
agreed to pay Moon $2,000.00 to steal a Suburban and change the bodies
before selling it. Moon further testified that he and Charles Berry
Roberson (apparently the person whom Willis heard referred to as "Robert")
stole the 1994 Suburban. Moon then hired Mat Lowrance and Uder (who were
associated with another auto body chop shop called Auto Mart, which was
owned by Kenny Smith), to do the body work on the Suburbans for $600 each.
The salvaged frame was brought to Hightower's shop from Lebanon. Over the
course of January 1 and January 2, 1994, Uder and Lowrance completed the
body work for the "swing," with the exception of a broken distributor that
needed replacing, and transferred the vehicle identification number and
other identifying plates to the newly rebuilt car. The next day, January
3, 1994, Uder and Lowrance were returning to fix the broken distributor
when they were waved off as they approached Hightower's shop, apparently
because the police were there. They, in turn, also waved off Moon
-4-
as he approached the shop. Consequently, Uder and Lowrance did not replace
the broken distributor as planned. That evening, Lowrance, Uder, and Moon
allegedly met at the Auto Mart in Lebanon, Missouri. Kenny Smith and one
of his employees, Frank Rodden, were also present. Afterward, Uder
allegedly removed from Hightower's shop some of the parts that had been
taken out of the interior of the salvaged Suburban, and he delivered those
parts to Kenny Smith, who had bought them from Eaves.
Other witnesses testifying for the government under a plea agreement
or a grant of immunity were Roberson (who had allegedly helped steal the
1994 Suburban), Lowrance (who, with Uder, allegedly did the body work for
the "swing"), Rodden (an employee of Kenny Smith at the Auto Mart), and
Eaves (Hightower's wife). They generally corroborated the story told by
Moon. The government also called as trial witnesses the owner of the
stolen 1994 Suburban, law enforcement officers who were involved in the
investigation (including FBI agent Stiffler), and an expert who testified
about how chop shops operate.
After the government rested, Uder moved for a directed verdict or
judgment of acquittal on grounds of insufficiency of the evidence. The
motion was denied. Uder rested without presenting any further evidence.
Uder timely objected to several of the jury instructions given by the
district court, including Instruction No. 13. The case was then submitted
to the jury following closing arguments. The jury found Uder guilty of
knowingly operating a chop shop and not guilty of knowingly tampering with
or altering a vehicle identification number.
The presentence investigation report (PSR) determined that Uder's
total offense level was 14, his criminal history category III (based upon
5 criminal history points), and the relevant amount of loss between $20,000
and $40,000 (representing the retail value of the stolen 1994 Suburban).
Uder filed objections to the PSR,
-5-
seeking a downward adjustment for minor role in the offense (U.S.S.G.
§ 3B1.2); a downward departure on grounds that his criminal history was
overstated (U.S.S.G. § 4A1.3); and a downward departure on grounds that his
cystic fibrosis constituted an extraordinary physical impairment (U.S.S.G.
§ 5H1.4). The district court rejected Uder's objections and adopted the
recommendations in the PSR. Uder was sentenced to twenty-one months
imprisonment, three years supervised release, and a $50.00 special
assessment. Uder appealed.
Discussion
Jury instruction referring to witnesses' guilty pleas
Uder argues on appeal that the district court erred in giving the
following Instruction No. 13:
You have heard evidence that Robert Moon, Charles
Barry Roberson, Frank Rodden, and Matthew Lowrance have
made plea agreements with the government and that
Margaret Eaves has received a promise from the
government that her testimony will not be used against
her in a criminal case. Their testimony was received in
evidence and may be considered by you. You may give
their testimony such weight as you think it deserves.
Whether or not their individual testimony may have been
influenced by the plea agreements or the government's
promise is for you to determine.
Each of these witnesses' guilty pleas cannot be
considered by you as any evidence of this defendant's
guilt. The individual witness's guilty plea or promise
from the government can be considered by you only for
the purpose of determining how much, if at all, to rely
upon the individual witness's testimony.
Uder tendered, as an alternative instruction, his proposed
Instruction A, which stated:
You have heard testimony from Robert Moon, Charles
Barry Roberson and Matthew Lowrance who stated that they
-6-
participated in the crime charged against defendant.
Their testimony was received in evidence and may be
considered by you. You may give their testimony such
weight as you think it deserves. Whether or not such
testimony may have been influenced by their desire to
please the government or strike a good bargain with the
government about his own situation is for you to
determine.
On appeal, Uder asserts that the question for this court is whether
the challenged jury instruction represents a complete statement of the law
and is supported by the evidence. Brief for Appellant at 19. However, we
note that the substance of Uder's objection to Instruction No. 13 is not
that the instruction was an incomplete or incorrect statement of the law.
Rather, Uder argues that, by giving Instruction No. 13, the district court
allowed the prosecution to "bolster" its witnesses because the instruction
unduly emphasized the fact that the witnesses had already pled guilty. Id.
at 20. Uder contends that this information was particularly damaging
because it was delivered by the trial judge through the jury instructions;
therefore, he argues, the conviction should be reversed. Id.
In response, the government argues that it was within the sound
discretion of the district court to remove from the jury any consideration
of the witnesses' guilty pleas as substantive evidence, and therefore
Instruction No. 13 was proper. Even if the instruction was not properly
given, the government argues, the error was harmless under the applicable
standard set forth in Rule 52(a) of the Federal Rules of Criminal
Procedure. United States v. Ryan, 41 F.3d 361, 366 (8th Cir. 1994) (en
banc) (properly objected to jury instructions are analyzed under the
harmless error standard in Rule 52(a)) (citing United States v. Voss, 787
F.2d 393, 398 (8th Cir.), cert. denied, 479 U.S. 888 (1986)), cert. denied,
115 S. Ct. 1793 (1995).
-7-
Upon review, we hold that the district court properly instructed the
jury that they could consider the witnesses' guilty pleas for the purpose
of determining the weight to afford those witnesses' testimony, but not as
substantive evidence of Uder's guilt. In United States v. Kroh, this court
explained that "[i]n the Eighth Circuit, the law is clear that ``a
confederate's guilty plea is admissible, even on the Government's direct
examination of the witness, as evidence of the witness's credibility, or
of his [or her] acknowledgement of participation in the offense.'" 915
F.2d 326, 331 (8th Cir. 1990) (en banc) (quoting United States v.
Hutchings, 751 F.2d 230, 237 (8th Cir. 1984), cert. denied, 474 U.S. 829(1985)) (emphasis in original). This court then stated "[t]he witness's
plea or evidence thereof, however, 'cannot be used as substantive evidence
of the defendant's guilt,' and the jury should be so instructed." Kroh,
915 F.2d at 331 (quoting Hutchings, 751 F.2d at 237) (emphasis added). See
also United States v. Willis, 997 F.2d 407, 414 (8th Cir. 1993) (same),
cert. denied, 510 U.S. 1050 (1994); United States v. Misle Bus & Equip.
Co., 967 F.2d 1227, 1233 (8th Cir. 1992) (same).
United States v. Stevens, 918 F.2d 1383, 1385 (8th Cir. 1990), is
also instructive. In Stevens, the defendant challenged a jury instruction
which was almost identical to the instruction at issue in the present case.
Rather than object to the admission of evidence indicating that a
government witness had pled guilty, the defendant in Stevens challenged the
district court's instruction which cautioned the jury only to consider the
guilty plea in relation to the weight to be afforded the witness's
testimony, not as substantive evidence of the defendant's guilt. Id. The
jury instruction in Stevens stated in pertinent part:
In deciding what the facts are, you may have to
decide what testimony you believe and what testimony you
do not believe. You may believe all of what a witness
said, or only part of it, or none of it.
-8-
. . . .
You have heard evidence that one of the
government's witnesses has pleaded guilty to a crime
which arose out of the same events for which the
defendant is on trial here. That guilty plea cannot be
considered by you as evidence of the defendant's guilt.
The witness's guilty plea can be considered by you only
for the purpose of determining how much, if at all, to
rely upon that witness's testimony.
Likewise, you have heard evidence that some of the
witnesses have made plea agreements with the government.
You may give the testimony of those witnesses such
weight as you think it deserves. Whether or not their
testimony may have been influenced by their plea
agreements is for you alone to determine.
Id. The defendant in Stevens argued that the district court should have
additionally stated that such testimony "should be considered with greater
caution and care than that of an ordinary witness." Id. Upon review, we
first explained that "[a] district court has wide discretion in formulating
appropriate jury instructions, and we evaluate the adequacy of the
instructions by reviewing them as a whole." Id. (citing United States v.
McQuarry, 726 F.2d 401, 402 (8th Cir. 1984)). We then went on to hold that
the district court had "adequately called to the jury's attention the
factors which may have affected [the witness's] credibility." Id. We thus
concluded that the district court did not abuse its discretion in refusing
to modify its instruction in the manner requested by the defendant. Id.In the present case, we review the district court's formulation of
Instruction No. 13 for an abuse of discretion. At the time the district
court gave Instruction No. 13, the jury had already heard testimony
regarding the guilty pleas and plea agreements of some of the government
witnesses. Under these circumstances, it was appropriate for the district
court to give a specific instruction regarding the proper limitations on
the jury's consideration of that evidence. Indeed, notwithstanding Uder's
-9-
proposed alternative Instruction A, we think the district court would have
erred had it failed to instruct the jury that the witnesses' guilty pleas
could not be considered as evidence of Uder's guilt. We therefore hold
that the district court certainly did not abuse its discretion.
Sufficiency of the evidence
Uder also argues that the evidence was insufficient as a matter of
law to support the jury's guilty verdict on the count charging him with
conducting operations in a chop shop, in violation of 18 U.S.C.
§ 2322(a)(1). Uder contends that the government's evidence was
insufficient because it failed to establish that he knew that the 1994
Suburban was stolen or otherwise unlawfully obtained. Uder maintains that
this was an element of the government's burden of proof, based upon the
definition of "chop shop" contained in 18 U.S.C. § 2322(b). Uder argues
"there is no direct evidence that [he] knew the vehicle was stolen," and
"[t]here is conflicting evidence from which inferences might be drawn which
is [sic] as consistent with innocence as guilt." Brief for Appellant at
13-14.
In response, the government argues that it was only required to prove
that Uder acted knowingly in conducting operations of the chop shop, not
that he had specific knowledge of the facts which made the chop shop fall
within the statutory definition. On this point, the government compares
18 U.S.C. § 2322 to 18 U.S.C. § 1955(a) (the federal illegal gambling
business law). For example, the government contends, the mere "wrench man"
is criminally responsible for a chop shop's operations even though he may
not personally know the unlawful origin of a particular vehicle or the
intended disposition of the vehicle. In the alternative, the government
argues that, even if it were required to prove Uder's knowledge that the
1994 Suburban was stolen, there was ample evidence supporting such an
inference.
-10-
Although we do not necessarily agree with the government's assertion
that "[a]ny degree of participation in a chop shop, other than as customer,
should be within the 'conduct' provision of § 2322(a)," Brief for Appellee
at 32, we conclude that the evidence of intent was sufficient to support
the jury's verdict in the present case. Because we hold that the evidence
overwhelmingly supported a finding of guilty knowledge under any reasonable
interpretation of the jury instruction setting forth the elements of the
offense4 (which Uder has not challenged), we find it unnecessary at this
time to define the exact scope of the intent element of 18 U.S.C.
§ 2322(a)(1).
In reviewing a challenge for sufficiency of the evidence, we view the
evidence in the light most favorable to the government, giving it the
benefit of all reasonable inferences that support the jury verdict. United
States v. Robaina, 39 F.3d 858, 863 (8th Cir. 1994). The verdict must be
upheld if there is an interpretation of the evidence that would allow a
reasonable jury to conclude guilt beyond a reasonable doubt. Id.Decisions regarding the
4
The district court instructed the jury that the government
had the burden to prove beyond a reasonable doubt that: "One, the
defendant, during the period alleged, conducted operations in a
chop shop; and, Two, the defendant did so knowingly." Appendix at
5 (Instruction No. 14). The district court further instructed the
jury that
the term 'chop shop' means any building, lot,
facility, or other structure or premise where one
or more persons engage in receiving, concealing,
destroying, disassembling, dismantling,
reassembling, or storing any passenger motor
vehicle or passenger motor vehicle part which has
been unlawfully obtained in order to alter,
counterfeit, deface, destroy, disguise, falsify,
forge, obliterate, or remove the identity,
including the vehicle identification number or
derivative thereof, of such vehicle or vehicle part
and to distribute, sell, or dispose of such vehicle
or vehicle part in interstate or foreign commerce.
Id. at 6 (Instruction No. 15).
-11-
credibility of witnesses are to be resolved in favor of the jury's verdict.
United States v. Schnurstein, 977 F.2d 449, 453 (8th Cir. 1992). With
these standards in mind, we hold that the evidence in the present case was
more than legally sufficient to prove that Uder knew the work being done
in Hightower's shop, in which he participated, involved the alteration of
a motor vehicle which had been unlawfully obtained. In fact, the
reasonable inferences to be drawn from the testimony of several of the
government witnesses, including Moon and Lowrence, for example, were more
than legally sufficient to support the conclusion that Uder knew the 1994
Suburban had been stolen. Therefore, we hold that the district court did
not err in denying Uder's motion for directed verdict or judgment of
acquittal.
Double jeopardy claim
Uder separately argues that the government's case against him
violated his double jeopardy rights because one count on which he was
indicted, the vehicle identification number tampering count, required proof
of conduct that satisfied the other count on which he was indicted, the
chop shop count. Where, as here, two such counts involve the same vehicle
and the same alleged conduct, Uder argues, double jeopardy rights are
implicated. In response, the government first notes that this issue was
not preserved below and, thus, review is for plain error. On the merits,
the government argues that Uder's rights were not violated under any double
jeopardy standard, including the Blockburger5 test. We agree.
In the present case, Uder was charged under 18 U.S.C. § 511, for
altering the vehicle identification numbers on a stolen car, and under 18
U.S.C. § 2322(a)(1), for knowingly conducting operations in a chop shop.
Although the two counts were generally based upon the same conduct, the
violation charged under § 511 was
5
Blockberger v. United States, 284 U.S. 299 (1932).
-12-
not a lesser included offense of the violation charged under § 2322. The
§ 511 count charged Uder with altering or removing a vehicle identification
number, whereas the § 2322 count charged him with acting to alter, destroy,
remove, etc., the identity (which may have involved, but did not
necessarily involve, the vehicle identification number) of a passenger
motor vehicle or motor vehicle part for the purpose of disguising, etc.,
the vehicle or part. Moreover, under the Blockburger test, each charged
offense included an element that the other did not. The charged § 2322
violation required a purposeful effort to disguise a vehicle, which the
§ 511 violation did not. The charged § 511 violation required actual
alteration or removal of a vehicle identification number, which the § 2322
violation did not. We therefore hold that no double jeopardy violation
occurred. It follows that there was no plain error.
Minor role in the offense
Uder also argues that the district court erred in failing to give him
a two-level sentencing reduction on the ground that he was a minor
participant within the meaning of U.S.S.G. § 3B1.2. Uder concedes that the
district court properly limited its factual considerations to the unlawful
activities involved in the Suburban "swing." He argues, however, that his
role in that process as a whole was minor because it was limited to doing
only some of the body work. He points out that he did not steal the 1994
Suburban, nor would he have been involved in the resale of the reassembled
vehicle.
We review for clear error the district court's finding that Uder was
not a minor participant under § 3B1.2. We agree with the district court
that he was not less culpable than most of the other participants who were
involved in the "swing." Uder and Lowrance spent two days reassembling the
body of the stolen 1994 Surburban on the salvaged frame of the 1993
Suburban. In our opinion, it is
-13-
fair to say that he was at least an average participant with respect to the
Suburban "swing." Cf. United States v. Shaw, 94 F.3d 438, 443-44 (8th Cir.
1996) (where defendants were convicted on one count of using the telephone
to commit drug-related offenses, but not for the larger drug-related
conspiracy, the district court did not clearly err in denying them a
§ 3B1.2 reduction; even though they may have been minor participants in
drug-related conspiracy, they were "average" rather than minor participants
in the illegal telephone use); see also United States v. Miller, 56 F.3d
719, 720-21 (6th Cir. 1995) (where defendant had pled guilty to conspiracy
to operate a chop shop under 18 U.S.C. § 2322(a) and other related vehicle
crimes, the district court did not clearly err in finding that defendant
was not a minor participant under U.S.S.G. § 3B1.2, even though defendant's
role was limited to assisting in dismantling vehicles). We therefore hold
that the district court's finding was not clearly erroneous.6
6
We note that the government has cited United States v. Lucht,
18 F.3d 541, 555-56 (8th Cir.), cert. denied, 115 S. Ct. 363(1994), for the general proposition that "[a] defendant is not
entitled to reduction of sentence pursuant to U.S.S.G. § 3B1.2 on
the grounds that he played a minor or minimal role in a greater
offense, where the greater offense is not taken into account in
setting the base offense level." Brief for Appellee at 43. We
caution that Lucht's reference to the base offense level must be
read in the context of that case. Lucht involved a drug offense
and, therefore, under U.S.S.G. § 2D1.1, the base offense level
specifically incorporated a drug quantity determination. By
contrast, in the present case, Uder's base offense level would have
been 8 pursuant to U.S.S.G. § 2B6.1(a), regardless of the value of
the loss taken into account for sentencing purposes. The amount of
loss in the present case affected Uder's specific offense
characteristics, not his base offense level. Under the applicable
guideline provisions, the district court was required to make a
finding as to the retail value of vehicles or parts involved in the
offense, which could have resulted in an increase ranging from 0 to
18 levels. U.S.S.G. § 2B6.1(b)(1) (specific offense character-
istics incorporating increases set forth in U.S.S.G. § 2F1.1).
Depending on the nature of the offense and the applicable guideline
provisions, the courts may in some instances look to factors other
than those affecting the base offense level -- such as the factors
affecting the specific offense characteristics -- to decide whether
a reduction under § 3B1.2 applies. In other words, if, in the
present case, the district court had increased Uder's offense level
under § 2B6.1(b)(1) on the basis of all the vehicles and parts
-14-
Downward departure issues
Finally, Uder argues that the district court abused its discretion
at sentencing by failing to depart downward based upon an overstated
criminal history under U.S.S.G. § 4A1.3, and it further abused its
discretion by failing to depart downward based upon extraordinary physical
impairment under U.S.S.G. § 5H1.4. As to both of these issues, we note
that the district court was aware of its authority to grant a downward
departure, but declined to do so. Under these circumstances, we lack
authority to review the district court's exercise of its discretion not to
depart. See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993)
(where district court was aware of its authority to depart, appellate court
lacks authority to review district court's exercise of discretion not to
depart downward under § 4A1.3); United States v. Fischl, 16 F.3d 927, 929
(8th Cir. 1994) (where district court was aware of its authority to depart,
appellate court lacks authority to review district court's exercise of
discretion not to depart downward under § 5H1.4).
involved in Hightower's entire chop shop scheme, we think that
Uder's role in that larger scheme would frame the relevant inquiry
for purposes of applying § 3B1.2. However, the district court's
specific offense characteristic determinations were as follows:
Uder received a four-level increase under § 2B6.1(b)(1) on the
basis of the retail value of the stolen 1994 Suburban only; Uder
did not receive a two-level increase under § 2B6.1(b)(2) for being
in the business of receiving and selling stolen property; and
Uder's offense level was increased to 14 under § 2B6.1(b)(3)
because the "swing" involved an organized scheme to steal vehicles
or vehicle parts. Therefore, the relevant aspects of Uder's
guidelines calculation were solely based upon those operations
related to the "swing" of the Suburbans, which confirms our
conclusion that the district court correctly applied § 3B1.2,
notwithstanding the legal distinction we have drawn between this
case and Lucht.
-15-
Conclusion
For the foregoing reasons, the judgment of the district court is
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-16-